Wireless carriers generally hold exclusive licenses to operate in certain spectrum, while Wi-Fi, Bluetooth, and many other devices operate without radio licenses provided they can show adherence to certain emissions and other technical requirements designed to protect licensed services. The LTE-U authorization follows years of wireless industry pressure to open up unlicensed frequencies to offload mobile traffic and ease network congestion. The ability to offload traffic to Wi-Fi has become increasingly important as the demand for streaming video continues to grow. LTE-U only works over short distances, but its supporters highlighted its potential to improve over Wi-Fi capabilities using the U-NII spectrum to deliver gigabits of data at LTE speeds while improving capacity in buildings and city centers. However, LTE-U faced opposition from cable and internet service providers concerned that increased traffic would degrade the performance of Wi-Fi, Bluetooth, and other technologies operating in the same spectrum. Opponents noted that Wi-Fi networks already carry the bulk of mobile device traffic and asked the FCC for more time to evaluate LTE-U technology.

The Wi-Fi Alliance developed co-existence guidelines for Wi-Fi and LTE-U and released an evaluation test plan in late 2016. Tests have been conducted under the plan and, while the head of OET stated last week that he understood the LTE-U devices were evaluated successfully under that test plan, he emphasized that the certifications, as is the case with all equipment authorizations, merely demonstrated that the LTE-U devices in question met the FCC’s unlicensed device technical requirements for operation in certain bands. The devices have not been certified to not cause interference to or receive interference from Wi-Fi devices.

Following the authorization, multiple carriers announced their plans to deploy LTE-U devices in the next few months, with other wireless providers expected to follow suit. The LTE-U devices will complement existing LTE service, using compatible base stations located across the country that also serve as base stations to licensed LTE devices.

These certifications and the carriers’ related announcements of their intent to deploy the devices raise two important questions. First, will the deployment of these devices at scale lead to congestion and interference concerns in the U-NII bands? Cable operators, wireless internet service providers, and other Wi-Fi proponents will be watching closely. Second, will access by carriers using LTE-U devices in the hundreds of megahertz in the 5 GHz band reduce pressure for more licensed spectrum for commercial mobile carriers? The amount of U-NII spectrum available to mobile carriers deploying LTE-U devices is approximately the same, if not slightly more, than all of the spectrum licensed to commercial mobile carriers, and increasingly more and more usage is characterized by subscribers that are effectively stationary, in and near buildings and in public spaces and venues. It will be most interesting whether these certifications, in retrospect, end up being transformational in terms of how the spectrum is managed in years to come.

Just last week, proposed rules by DOT's Office of the Secretary of Transportation (OST) hit the Federal Register (FR), with comments due by February 13, 2017. According to the FR notice, DOT designed the proposals to prevent passengers "from being unwillingly exposed to voice calls within the confines of an aircraft," under the assumption that consumers ordinarily purchase tickets with the "reasonable expectation that voice calls will not be permitted on flights within the United States." Considering customer comfort, DOT proposes not to ban voice calls on flights but rather to require ticket sellers and airlines to provide advance notice to passengers if flights permit voice calls.

Despite the fact that DOT issued this proposal, three regulatory bodies – DOT, the Federal Aviation Administration (FAA), and the Federal Communications Commission (FCC) have varying responsibilities when it comes to regulating aircraft communications. The FCC presides over technical issues while the FAA covers safety issues and DOT’s OST handles consumer protection issues.

So, how did we get to this point? Back in 1991, the FCC restricted the use of mobile devices on aircraft that operate on certain commercial mobile frequencies. As such, U.S. airlines require that passengers either disable their mobile devices or use airplane mode while airborne.

In December 2013, the FCC proposed rules that would enable aircraft operators to permit passengers to make or receive calls onboard aircraft using commercial mobile spectrum bands, which received a fair amount of backlash and was thus abandoned. Two months later, DOT's OST sought comment on whether to ban voice calls on passengers' mobile wireless devices on commercial aircrafts. A majority of the 1,700 commenters supported a ban, expressing concern that voice calls in the presence of others would be disturbing, create "air rage," place additional strains on flight attendants, and intrude on customers' privacy and opportunities to sleep.

Fast forward to the end of 2016 and Wi-Fi is more ubiquitously available to passengers on flights. Many US airlines now have the capacity to allow passengers to make and receive voice calls onboard over Wi-Fi, which the FCC does not prohibit. While OST is unaware of any airline carriers currently permitting voice calls, OST recognizes that airlines' technical capacity to allow voice calls is increasing as costs are decreasing, which can result in both a higher number and duration of calls, thereby causing passenger discomfort.

As a result, DOT now proposes to regulate voice calls onboard aircraft to protect customers and prevent "air rage." The rules would only apply to passenger-supplied devices, regardless of whether the call occurs on a commercial mobile frequency or Wi-Fi. DOT further adds that the airlines are free to ban voice calls as a matter of policy, allow voice calls on certain flights or during certain portions of flights, or create voice call free zones. Basically, DOT acknowledges that US consumers expect a voice-call free cabin.

OST seeks comment on this proposal as well as its proposed definitions of mobile wireless device and voice calls. OST defines "mobile wireless device" as any portable wireless telecommunications device not provided by the covered airline that is use for the transmission or reception of voice calls. OST defines "voice calls" as an oral communication made or received by a passenger using a mobile wireless device.

OST proposes that such rules apply to passenger flights in scheduled and charter air transportation, not small entities (those with designated seating capacity of less than 60 seats). OST seeks comment on whether the rules should apply to small aircraft, commuter carrier flights, single entity charter flights, air ambulances and on-demand air taxi operations.

OST also proposes that the rules apply not just to the carriers but also to the sellers of the air transportation, with the intent of providing consumers the opportunity to learn in advance that they are considering purchasing a flight which permits voice calls.

OST's proposal follows DOT's code-share disclosure rule, which is an arrangement where a flight is operated by a carrier other than the airline whose identity is used in the schedule and on the tickets. This disclosure ensures that customers are aware of the identity of the airline actually operating their flight. Similarly, by requiring airline ticket sellers to disclose their voice call policies on both flight itinerary and schedule displays (including websites and mobile applications), consumers can make an informed choice about whether to book a flight which allows voice calls.

Carriers should consider whether such proposed rules would have any implications. Just as consumers have to think twice about whether they would prefer notice of airlines allowing voice calls, carriers should consider whether they too would be subject to either the notice requirements or whether such a policy would affect the services they offer their customers. Given the fate of the FCC proposal, time will tell whether DOT may face similar challenges - not just with the notice requirements but with whether a proposal considering voice calls can even survive.

In determining not to continue to provide for an exemption the unlocking of mobile devices, the Agency focused on three factors.

First, there had been a significant development in case law regarding whether the firmware (the software that runs the handset) was owned or licensed to the handset user. Prior to 2010, the assumption was that the owner of the handset owned the copies of software on their phones. This had enabled the Agency (in part) to conclude that the an exception to the prohibition against circumvention of technological measures was appropriate (i.e., a non-infringing use of a work owned by the handset owner).

This assumption changed in 2010 when a federal court identified factors that would indicate that the mobile phone firmware was licensed to, rather than owned by, the handset owners. Assuming that a license was issued with respect to the firmware, it is generally apparent that the mobile phone firmware is licensed to the handset owner. What follows then is: (i) the handset owners must comply with the license terms; and (ii) if the license terms say you cannot circumvent the access controls to move the phone to another network, you cannot do it. It should be noted that although the Agency found the case law to be instructive, it did not find it to be controlling.

The second significant factor the Agency relied upon was that the handset owner could have its phone unlocked by the carrier through the carrier’s unlocking policy. Put another way, the logic is that since the carriers will unlock the phone upon request (and satisfaction of certain conditions), there is no reason an exemption (which by their nature are extraordinary) from copyright law. This notion was bolstered by the practice of some who apparently bought pre-paid phones that were subject to subsidized pricing, unlocked the phones, and sold them in foreign markets at non-discounted prices. On the losing end of this transaction was the carrier, who was unable to recover the subsidy because the phone was not used on its network. Removing the exemption makes this practice unlawful.

The final significant factor that the Agency relied upon was that, even though not every handset is available, there are many handsets than can simply be bought unlocked.

Therefore, be warned. It is a violation of law to unlock your mobile device without the assistance of your carrier. Monetary damages and penalties will apply. We expect carriers to begin modifying their terms and conditions to implement this ruling, and litigation against entities facilitating unlocking remains a possibility.

As a postscript, there is a “We the People” petition with over 100,00 signatures requesting that the White House to ask the Librarian of Congress to reconsider its decision. We shall see, but know that online petitions are not a substitute for the Federal Rulemaking Process.